126 N.Y. 122, Seneca Nation of Indians v. Christy

Citation:126 N.Y. 122
Party Name:THE SENECA NATION OF INDIANS, Appellant, v. HARRISON B. CHRISTIE, Respondent.
Case Date:April 14, 1891
Court:New York Court of Appeals
 
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126 N.Y. 122

THE SENECA NATION OF INDIANS, Appellant,

v.

HARRISON B. CHRISTIE, Respondent.

New York Court of Appeal

April 14, 1891

Argued October 23, 1890.

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COUNSEL

James C. Strong for appellant. The plaintiff has a right to bring this action. (Laws of 1845, chap. 150, § 1; Code. Civ. Pro. § 419.) The plaintiff being a nation of Indians, the Statute of Limitations does not apply to or affect its right to bring this action. (McGammon v. Straghtley, 32 Kan. 524; 5 Pet. 4; 1 Dill. 349; 5 Wall. 761.) No title to Indian lands can be acquired by adverse possession or prescription. (2 U.S. Laws, 460, chap. 13; U.S. Const. art. 2, § 2; id. art. 1, § 8; R. S. § § 88, 476; 5 Pet. 4; 7 U.S. Stat. at Large, 44, 47; 1 Paine. 457; 65 N.Y. 57, 66; 1 Dill. 349, 350; 5 Wall. 761, 768; 5 Lans. 397; 4 McLean, 440; 5 Wall. 737, 758; 3 Dill. 418.) Lands could not be purchased from Indians except by treaty, entered into and executed in pursuance of the provisions of the United States Constitution. (2 U.S. Laws, 460, chap. 13; U.S. Const. arts. 1, 2, § § 2, 8.) The right of pre-emption under which this land could be purchased from the Indians was owned by the state of Massachusetts, and was not private property at the time that state adopted the Federal Constitution, and by its adoption the state bound itself by its provisions, one of which was that it would not purchase land from the Indians except under such laws and regulations as congress might enact, governing such purchases, and of course its grantees were governed and bound by its act. (1 U.S. Chart. & Const. 921-942.) Section 3 of the act of congress of 1846, which provides for the transfer of $43, 050 from the Ontario County Bank into the United States

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treasury (by reason of the expiration of the bank's charter) in no way ratified the treaty of August 31, 1826, nor did it in any manner affect the title to lands purported to be conveyed by it. (U. S. Stat. 1846, § 3; Cox v. Mayor, etc., 103 N.Y. 519.)The burden of proof in this case rests upon the defendant. It devolves upon him to absolutely prove his title. (5 U.S. Stat. at Large, 733, § 22.)

Norris Morey for respondent. This action is barred by the Statute of Limitations. (Cayuga Nation v. State, 99 N.Y. 235; Strong v. Waterman, 11 Paige, 607; Munro v. Merchant, 28 N.Y. 10; Sands v. Hughes, 53 id. 296; Bradstreet v. Huntington, 5 Pet. 402, 439, 448; Ward v. Warren, 82 N.Y. 265; Nichols v. Wentworth, 100 id. 455; Harpending v. D. Church, 16 Pet. 455; Humbert v. T. Church, 24 Wend. 587.) Unless persons are under the disabilities expressly mentioned in the Statute of Limitations, they cannot be exempted from its operation by judicial construction. The plain meaning and literal expression of the Statute of Limitations is not to be departed from by the courts. (Angell on Lim. §§ 194, 476; Demarest v. Winkoop, 3 Johns. Ch. 129; McIvor v. Ragan, 2 Wheat. 25; Harpending v. D. Church, 16 Pet. 455, 493; Bogardus v. T. Church, 4 Paige, 178; Humbert v. T. Church, 24 Wend. 587; Green v. Niel, 6 Pet. 291; Mitchell v. United States, 9 id. 760; Stone v. United States, 2 Wall. 525.) The claim made by the attorney for the plaintiff that the treaty or conveyance of August 31, 1826, was absolutely void, and that, therefore, the Ogden Land Company and its successive grantees, including the defendant, have acquired no right whatever thereunder is untenable. (Mitchell v. U.S. 9 Pet. 711; Johnson v. MacIntosh, 8 Wheat. 543; Fletcher v. Peck, 6 Cranch. 142; U.S. v. Cook, 19 Wall. 591; Busher v. Wetherby, 95 U.S. 517; Strong v. Waterman, 11 Paige, 607.) The claim that this conveyance of August 31, 1826, was invalid, under the provisions of section 12, chapter 13, Laws of 1802 (2 Statutes at Large, 143), because it was not ratified by a two-thirds vote of the senate of the United States, is erroneous.

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(U. S. v. Kagama, 118 U.S. 375, 380; U.S. Const. art. 2, § 2; U.S. Laws of 1796, chap. 30, § 12.)The purpose and legal effect of the act of congress was to prohibit any extinguishment of the Indian title to lands within the territories of the United States, except by a constitutional treaty, and to establish a federal supervision over the making of all contracts for the extinguishment of the Indian title to lands within the states. (Mitchell v. U.S. 9 Pet. 711; 7 U.S. Stat. at Large, 601-603; Stuart v. Laird, 1 Cranch. 308; Martin v. Hunter, 1 Wheat. 304; B. C. L. Co. v. Sarony, 111 U.S. 53; Pollock v. B. S. Co., 114 id. 411.) If the purchase by the holders of the right of pre-emption needed any recognition or confirmation from the government of the United States, it received such recognition and confirmation by section 3 of chapter 34 of the laws of congress of 1846. (Holden v. Joy, 84 U.S. 211.) The exclusive right to purchase these lands of the Indians had been theretofore secured to the state of Massachusetts and its grantees by the treaty of session between the states of New York and Massachusetts, which had been duly confirmed and adopted by the United States government. The United States government had, therefore, granted and confirmed to the Indians the right to sell and to the state of Massachusetts and its grantees (the Ogden Land Company whose title defendant has) the exclusive right to purchase. These rights, thus secured, could not be taken away by a mere act of congress. (Wilson v. Wall, 6 Wall. 89; Holden v. Joy, 84 U.S. 211, 250; Insurance Co. v. Cantor, 1 Pet. 542; Mitchell v. U.S. 9 id. 749; Murray v. Wooden, 1 Wend. 531; Smith v. City of Rochester, 92 N.Y. 476, 477; United States v. Kagama, 118 U.S. 375.) The title of the Indians to the soil is founded upon simple occupancy, and they have no power to dispose of the soil, except to the government, or one who has acquired from the government the right of pre-emption. The possession, when abandoned by the Indians, attaches itself to the fee without further grant. (United States v. Cook, 19 Wall. 591; Jackson v. Hudson, 3 Johns. 375; Howard v. Moot, 64 N.Y. 270; Strong v. Waterman,

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11 Paige, 607; Johnson v. MacIntosh, 8 Wheat. 543; 3 Kent's Comm. 79, 80; Bucher v. Wetherby, 95 U.S. 517.)

ANDREWS, J.

This is an action of ejectment brought to recover one hundred acres of land in the county of Erie.

The general facts are undisputed. The land in question is a part of a tract of more than 87, 000 acres or 135 square miles of land situate in Erie and other counties in the western part of the state, which prior to August 31, 1826, and for a period extending back to about the middle of the seventeenth century, had been in the occupation of the Seneca Nation of Indians, claiming dominion by conquest from other aboriginal tribes.

On the day mentioned (August 31, 1826), at a public council of the Seneca Nation held at Buffalo Creek, in the county of Erie, a deed was executed by the Indians to Robert Troup, Thomas L. Ogden and Benjamin W. Rogers (known as the Ogden Land Company), of the 87, 000 acres of land to which reference has been made, situated in Erie, Cattaraugus, Allegany, Livingston, Genesee and Chatauqua counties, in this state. The deed contains a recital that it was executed 'at a treaty held under the authority of the United States at Buffalo Creek, in the county of Erie, in the state of New York, between the sachems, chiefs and warriors of the Seneca Nation of Indians on behalf of said nation and Robert Troup, Thomas L. Ogden and Benjamin W. Rogers, Esq., of the city of New York, in the presence of Oliver Forward, Esq., commissioner appointed by the United States for holding said treaty, and of Nathaniel Gorham, Esq., superintendent on behalf of the state of Massachusetts.' It purports, in consideration of the sum of $48, 216, acknowledged in the deed to have been in hand paid to the sachems, chiefs and warriors of the Seneca Nation by the grantees, to grant to the purchasers all the right, title and interest of the Seneca Nation in and to the lands described, and was executed under the hands and seals of the sachems, chiefs and warriors (forty-six in number) of the Seneca Nation and of the several grantees on the deed, and is witnessed by

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Jasper Parish, Indian agent, and three other persons described as interpreters. It was certified and approved by the superintendent appointed on behalf of the state of Massachusetts, and by Oliver Forward, the commissioner of the United States. It is stated in the certificate of the United States commissioner that the deed was executed in his presence by the sachems, chiefs and warriors of the Seneca Nation, and was fully understood by them, who declared that it was 'done to their universal satisfaction.' The deed was proved by one of the subscribing witnesses, was afterwards confirmed by the legislature of Massachusetts and, in 1827, was duly recorded in the several counties in this state in which the lands were situated. In 1827 the sum of $43, 050 of the consideration of the deed was deposited by the grantees in the Ontario Bank of Canandaigua, in trust for the Seneca Nation, where it remained from that time until 1855, when it was paid over by the bank into the United States treasury, where it still remains. Meanwhile, from 1827 to the time of the commencement of this suit, a period of nearly sixty years, the interest on this fund has been annually paid to the Seneca Nation, first by the bank and afterwards by the United States. It does not appear how or when the remainder of the consideration mentioned in the deed was paid, or whether it was paid at all, except as may be inferred from the acknowledgment of payment of the consideration in full, contained in the deed.

The conveyance or treaty of August 31, 1826, was never ratified by the senate of the United States, or proclaimed by the president. The extent of the...

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